Back
1957 Supreme(Cal) 63
HIGH COURT OF CALCUTTA
Bose
HAZI SIDDIQUE - Appellant
Versus
CERTIFICATE OFFICER, BURDWAN - Respondent
Civil Revn. 3557 Of 1953
Decided On : MARCH 19, 1957
BANKIM CHANDRA ROY, Hariprasanna Mukherjee, J.Majumdar
The remedy of appeal under Section 51 of the Bengal Public Demands Recovery Act should be followed in the first instance, and revision under Section 53 should be resorted to only where an appeal is not available.
Headnote:
BENGAL PUBLIC DEMANDS RECOVERY ACT - CERTIFICATE PROCEEDINGS - SERVICE OF NOTICE - JURISDICTION - SALE NOTICE - SERVICE - IRREGULARITY - CERTIFICATE OFFICER'S APPROVAL OF LEASE - JURISDICTION - APPEAL AND REVISION - DISCRETION OF COURT - INTERFERENCE BY HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION. - [1] SERVICE OF NOTICE UNDER SECTION 7 OF THE BENGAL PUBLIC DEMANDS RECOVERY ACT IS ESSENTIAL FOR VALIDITY OF CERTIFICATE PROCEEDINGS. [2] SERVICE OF SALE NOTICE UNDER RULE 46 OF THE CERTIFICATE MANUAL IS DIRECTORY AND NON-COMPLIANCE DOES NOT VITIATE PROCEEDINGS UNLESS IT RESULTS IN FAILURE OR MISCARRIAGE OF JUSTICE. [3] CERTIFICATE OFFICER HAS NO JURISDICTION TO APPROVE OR CONFIRM LEASE GRANTED BY CERTIFICATE DEBTOR WITHOUT REFERENCE TO HIM. [4] REMEDY OF APPEAL UNDER SECTION 51 OF THE ACT SHOULD BE FOLLOWED IN THE FIRST INSTANCE AND REVISION UNDER SECTION 53 SHOULD BE RESORTED TO ONLY WHERE APPEAL IS NOT AVAILABLE. [5] HIGH COURT WILL NOT INTERFERE WITH EXERCISE OF DISCRETION BY COLLECTOR OR COMMISSIONER IN TREATING AN APPLICATION FOR REVISION AS A MEMORANDUM OF APPEAL OR VICE VERSA UNLESS IT IS SHOWN THAT THE DISCRETION HAS BEEN IMPROPERLY OR ARBITRARILY EXERCISED.
Fact of the Case:
Petitioner challenged the certificate proceedings initiated against him under the Bengal Public Demands Recovery Act, 1913, alleging irregularities in the service of notices, non-compliance with the rules for serving sale notice, and the Certificate Officer's approval of a lease granted by the petitioner without reference to him. The petitioner also contended that the Collector erred in rejecting his petition for revision of the Certificate Officer's orders on the ground that an appeal should have been filed instead.
Finding of the Court:
1. Service of notice under Section 7 of the Bengal Public Demands Recovery Act is essential for the validity of certificate proceedings, but in this case, the petitioner failed to establish that such notice was not served. 2. Service of sale notice under Rule 46 of the Certificate Manual is directory, and non-compliance does not vitiate the proceedings unless it results in failure or miscarriage of justice. In this case, the petitioner had knowledge of the contemplated sale and obtained postponements of the sale on several occasions, indicating that he was not prejudiced by any irregularity in the service of the sale notice. 3. The Certificate Officer did not approve or confirm the lease granted by the petitioner in favor of a third party, and the petitioner failed to show that the Certificate Officer acted in contravention of Rule 66 of the Certificate Manual. 4. The remedy of appeal under Section 51 of the Act should be followed in the first instance, and revision under Section 53 should be resorted to only where an appeal is not available. In this case, the petitioner could have filed an appeal against the Certificate Officer's orders but instead chose to file a petition for revision, which was correctly rejected by the Collector and the Commissioner. 5. The High Court will not interfere with the exercise of discretion by the Collector or Commissioner in treating an application for revision as a memorandum of appeal or vice versa unless it is shown that the discretion has been improperly or arbitrarily exercised. In this case, there was no evidence of such improper or arbitrary exercise of discretion.
Issues: 1. Whether the service of notice under Section 7 of the Bengal Public Demands Recovery Act was valid. 2. Whether the service of sale notice under Rule 46 of the Certificate Manual was proper and in accordance with the rules. 3. Whether the Certificate Officer acted in contravention of Rule 66 of the Certificate Manual in approving or confirming the lease granted by the petitioner. 4. Whether the Collector erred in rejecting the petitioner's petition for revision on the ground that an appeal should have been filed instead. 5. Whether the High Court should interfere with the exercise of discretion by the Collector or Commissioner in treating an application for revision as a memorandum of appeal or vice versa.
Ratio Decidendi: 1. Service of notice under Section 7 of the Bengal Public Demands Recovery Act is essential for the validity of certificate proceedings, but the petitioner failed to establish that such notice was not served. 2. Service of sale notice under Rule 46 of the Certificate Manual is directory, and non-compliance does not vitiate the proceedings unless it results in failure or miscarriage of justice. In this case, the petitioner had knowledge of the contemplated sale and obtained postponements of the sale on several occasions, indicating that he was not prejudiced by any irregularity in the service of the sale notice. 3. The Certificate Officer did not approve or confirm the lease granted by the petitioner in favor of a third party, and the petitioner failed to show that the Certificate Officer acted in contravention of Rule 66 of the Certificate Manual. 4. The remedy of appeal under Section 51 of the Act should be followed in the first instance, and revision under Section 53 should be resorted to only where an appeal is not available. In this case, the petitioner could have filed an appeal against the Certificate Officer's orders but instead chose to file a petition for revision, which was correctly rejected by the Collector and the Commissioner. 5. The High Court will not interfere with the exercise of discretion by the Collector or Commissioner in treating an application for revision as a memorandum of appeal or vice versa unless it is shown that the discretion has been improperly or arbitrarily exercised. In this case, there was no evidence of such improper or arbitrary exercise of discretion.
Final Decision: The petition was dismissed, and the Rule was discharged with no order as to costs.
( 1 ) THIS is an application under Article 226 of the Constitution for a writ in the nature of Certiorari to quash certain orders made by the Certificate Officer, Burdwan, by the Collector and by the Commissioner, Burdwan, and by the Board of Revenue, West Bengal, in certificate proceedings taken under the Bengal Public Demands Recovery Act, 1913. The case of the petitioner is that the petitioner is one of the partners of a firm known as Haji Ibrahim Kasem Upletwalla. Certain certificate cases bearing Nos. 311, 312 and 313 of 1948-49 were started by the Certificate Officer of 24-Parganas against the petitioner and his partners for realisation of certain excess profit tax and sale tax. These certificate cases were transferred to the Certificate Officer, Burdwan, where the cases were numbered as Certificate Cases Nos. 35, 26, 37, 54 and 55 -- O. D. of 1949-50. The total amount in respect of which the certificate proceeding was taken was Rs. 1,97,096-12-9 after giving credit for a sum of Rs. 2,500 paid in the Office of the Certificate Officer, 24-Parga-nas, on the 5th February, 1951. The case of the petitioner further is that the business carried on by the firm of Haji Ibrahim Kasem Upletwalla had suilered considerable loss from time to time as a result whereof all the business of the firm except the business carried on under the name of Jilani Rice Mill at Memari, was completely closed down. As the petitioner had no means left to pay up the certificate dues the petitioner and his partners in order to make arrangement for payment in instalments of the certificate dues, leased out the said Jilani Rice Mill to the respondent No. 5, G. S. Rama Shett on the 31st of October 1950, for a term of 20 years terminating with the expiry of the month of October 1970, at an annual rental of Rs. 2,500 with the stipulation, that the lessee would deposit the annual rent every year in advance, before the expiry of the month of March, in the Government Income Tax Fund, towards part satisfaction of the certificate dues of the said firm of Haji Ibrahim Kasem Upletwalla. It is further alleged in the petition that upon the application of the respondent No. 5 the Certificate Officer, Burdwan, by a letter dated the 19th of January 1951, permitted the lessee to run the aforesaid rice mill on condition that the rent payable in terms of the lease would not be paid to the lessor. Thereupon the rent payable for the first year being the sum of Rs. 2,500 due for the period from the 1st of November 1950 to the 31st of October 1951, was deposited by the respondent No. 5 in the Office of the Collector of 24-Parganas on the 5th February 1951 and the said amount was appropriated towards part satisfaction of the certificate dues. But although the said amount was so deposited the Office of the Burdwan Collecto-rate called upon the respondent No. 5 by a letter dated the 18th April 1951 to deposit Rs. 2. 500 towards the rent of the aforesaid lease as part payment of the certificate dues. The respondent No. 5 thereupon intimated to the Office of the Burdwan Collectorate that a sum of Rs. 2. 500 had already been deposited in the Office of the Collector of 24-Parganas. But the Certificate Officer, Burdwan, on the 14th December 1951, wrongfully and in contravention of Rule 66 of the Certificate Manual, ordered the said mill to be put up to sale subject to the aforesaid lease in favour of respondent No. 5. A sale proclamation dated the 29th April 1952 was accordingly issued, at first fixing the date of sale on the 10th of June 1952, for realisation of the certificate dues. The sale was however subsequently adjourned from time to time on the application of the petitioner and it appears that the property has not yet been sold. It further appears that on the 10th June 1952, the petitioner filed an objection before the Certificate Officer under Section 37 of the Bengal Public De-mands Recovery Act, pointing out that the order directing sale of the mill was in contraven
